Supreme Court New South Wales Medium Neutral Citation: Illawarra Local Aboriginal Land Council v Stewart [2016] NSWSC 125 Hearing dates: 5 May 2014, 6 May 2014, 18 August 2014 Date of orders: 25 February 2016 Decision date: 25 February 2016 Jurisdiction: Common Law Before: Hidden J Decision: Order for possession made. Cross claim dismissed. Catchwords: PROCEEDINGS FOR POSSESSION OF LAND – 99 year lease of cottage on land owned by Local Aboriginal Land Council – validity of lease – whether conditions of s 40, Aboriginal Land Rights Act complied with. Legislation Cited: Aboriginal Land Rights Act 1983 Aboriginal Land Rights Regulation 1983 Evidence Act 1995 Interpretation Act 1987 Cases Cited: Darkinjung Pty Ltd v Darkinjung Local Aboriginal Land Council [2006] NSWSC 1008, 203 FLR 394 Hillig v Darkinjung Pty Ltd [2007] NSWSC 683 Hillig v Darkinjung Pty Ltd [2008] NSWCA 75 GPT RE Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256, 72 NSWLR 647 Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 Redglove Projects Pty Ltd v Ngunnawal Local Aboriginal Land Council [2005] NSWSC 892 Sanpine Pty Ltd v Koompahtoo Local Aboriginal Land Council [2005] NSWSC 365 Category: Principal judgment Parties: Illawarra Local Aboriginal Land Council (plaintiff) Kay Stewart (also known as Kay Maher) (defendant) Kay Stewart (cross claimant) Illawarra Local Aboriginal Land Council (cross defendant) Representation: Counsel: M Wright (plaintiff) S Chapple (defendant) Solicitors: Tony Papac & Associates (plaintiff & cross defendant) Eddy Neumann Lawyers (defendant & cross claimant) File Number(s): 2012/174239 JUDGMENT 1. HIS HONOUR: The plaintiff, Illawarra Local Aboriginal Land Council (to which I shall refer as the "the Land Council") is a Local Aboriginal Land Council constituted under the Aboriginal Land Rights Act 1983 ("ALRA"). It is the registered proprietor of part of the land known generally as the Coomaditchie Reserve in the Port Kembla area. On its land stands a number of dwelling houses, including a cottage occupied by the defendant, Ms Kay Stewart (her married name – her maiden name was Maher). 2. The Land Council has brought proceedings in this Court for recovery of possession of that cottage. Ms Stewart claims entitlement to possession, asserting that she entered into a 99 year lease of the cottage on 19 September 1989. The rental was $1 a year, and she was to pay rates and other expenses related to the property. It is her case that on the following day, 20 September 1989, she paid the Land Council the rent for the entire term, $99. She defends the proceedings on this basis, also seeking by cross-claim a declaration that, in the absence of any breach by her the terms of the lease, the Land Council is estopped from exercising any right of re-entry to the cottage. 3. There is a form of lease to that effect, albeit unregistered, and it is in evidence. The last page bears the common seal of the Land Council and the signature of Ms Mary Davis, the secretary of the Land Council at the time, the signature of Ms Stewart (under her maiden name, Maher) as the tenant, both signatures being witnessed by Ms Dorothy Tungai. Also in evidence is a copy of a receipt of 20 September 1989 evidencing payment of $99 to the Land Council "being payment of full for 99 years for lease" of the cottage. 4. The Land Council does not allege any breach of that lease. The central issue is whether it is valid, and this turns upon whether the requirements of s 40 of the Aboriginal Land Rights Act were met. The section has since been repealed, but was in force in 1989. Relevantly, it provides: "40 (1) An Aboriginal Land Council shall not sell, exchange, mortgage or dispose of in any other way (except in accordance with this section) land vested in it. (2) A Local Aboriginal Land Council may lease land vested in it or change the use of any such land only if— (a) the lease or change of use of the land has been approved at a meeting of the Council specifically called for that purpose at which a quorum was present and not less than 80 per cent of the members of the Council present and voting voted in favour of the lease or change of use; and (b) on an application to do so made to the Regional Aboriginal Land Council, the Regional Aboriginal Land Council has given its approval to the lease or change of use, as the case may be, of the land. ... (4) Subject to subsection (2), a Local Aboriginal Land Council may lease any land vested in the Local Aboriginal Land Council to any member of the Local Aboriginal Land Council on such terms and conditions, including a term or condition that if the lessee sub-leases the land otherwise than to another member of the Council the lease is forfeited, as the Council thinks fit. (5) A certificate purporting to be signed by the Secretary of a Local Aboriginal Land Council certifying in relation to any land that— (a) the lease of the land to a person specified in the certificate has been approved as referred to in subsection (2) (a) and (b) shall be conclusive evidence, in favour of a bona fide purchaser for value without notice, that the approvals so referred to have been duly given; or (b) a person was, at the time of the granting to him of any lease or sub-lease of the land referred to in subsection (4), a member of that Local Aboriginal Land Council shall be conclusive evidence, in favour of a bona fide purchaser for value without notice, that the person was at that time such a member. … (11) Any sale, lease, disposal or mortgage of, or other dealing with, land in contravention of this section is void." 1. Put shortly, s 40 allows a Local Land Council to lease land vested in it provided that: (a) the lease is approved at a council meeting called for that purpose, at which a quorum was present and not less than 80% of the members of the council voted in favour of it: subs (2)(a); and (b) the relevant regional Land Council gives its approval to the lease: subs (2)(b). A lease entered into in contravention of those requirements is void: subs (11). 1. Since the 1990s the Land Council has been in dispute with Ms Stewart about the basis of her occupancy of the cottage. In a letter to her of 4 February 2011, the Land Council's solicitors asserted that the lease was invalid and that she and her family were not entitled to occupy the premises in reliance upon it, but that the Land Council was willing to enter into a residential tenancy agreement with her on terms similar to agreements in respect of other Land Council properties. Ms Stewart refused to enter into such an agreement and, by a letter of 5 April 2012, the Land Council's solicitors informed her that unless she was prepared to do so, proceedings for possession would be commenced. Her position remained unchanged. Hence the present proceedings. At the time the matter came to hearing the Land Council's offer of a residential tenancy agreement was still on the table. 2. There is no issue about the execution of the lease on 19 September 1989, or Ms Stewart's payment of $99 the following day. It is Ms Stewart's case that the necessary approvals were obtained in accordance with s 40(2) of the Act. It is the Land Council's case that they were not. This is the issue upon which the outcome of the proceedings turns, and it requires assessment of a volume of documentary material and conflicting evidence of witnesses. 3. Affidavits of the witnesses were read, and all but one of them gave oral evidence. The principal witness in the Land Council's case was Mr Roy Kennedy, a member of the Land Council at the relevant time. An affidavit of Ms Sharralyn Robinson, Chief Executive Officer of the Land Council, relates to the Land Council's title to the cottage and the correspondence with Ms Stewart in 2011 and 2012 to which I have referred, none of which is in dispute. The only other witness was Ms Yvonne Alphenaar, whose evidence related to the publication of meetings. Her evidence, which is undisputed, bears upon the principal issue. 4. In Ms Stewart's case she herself gave evidence. She was also a member of the Land Council at the time, and was employed at its office. Two other members of the Land Council at the time also gave evidence: her husband, Neville Stewart, and her brother, Trevor Maher. Some of this evidence was directed to the background of occupancy at the Coomaditchie Reserve, the acquisition of the land by the Land Council, pursuant to the Act, in 1987, and the construction of some new dwellings, including the relevant cottage, up to and including 1989. In the event, it is not necessary to refer to this aspect of the evidence. 5. At the relevant time the Land Council had three office bearers: the chairman, the treasurer and the secretary. From the evidence, documentary and oral, it appears that the chairman throughout 1989 was Mr Dick Henry, the treasurer for the same period was Neville Stewart, and Mary Davis was elected secretary at a meeting on 29 August 1989. Ms Stewart and Neville Stewart were married in 1993, but had lived together as partners since 1987. Mr Henry and Ms Davis are deceased, having died before the commencement of the proceedings. I might add at this point that the same is true of Ms Dorothy Dungai, who witnessed the lease. 6. Ms Stewart's evidence was that in early 1989 there were discussions at Land Council meetings of long term leases of houses on the land. At one of those meetings, which she attended, Mary Davis moved a motion that leases be offered for 99 years at $1 per year, provided the tenants paid for water usage, rates, repairs and maintenance. She also proposed that Trevor Maher should draw up the leases. The motion was seconded, although Ms Stewart could not recall by whom, and was carried unanimously. Ms Stewart could not put a date on this meeting, but in her affidavit said that Mary Davis was the secretary at the time. 7. According to Ms Stewart, at a subsequent meeting, again on a date she could not recall, Ms Davis reported that Trevor Maher had prepared leases as proposed. Mr Henry said that there should be a motion that each of the tenants be offered a 99 year lease, that Trevor Maher explain the lease to each of them and, if agreement was reached, Mary Davis should be authorised to sign on behalf of the Land Council. Ms Stewart deposed that a motion was then moved and seconded that she be offered such a lease, and was carried unanimously. She could not recall who moved the motion or who seconded it. 8. She deposed that subsequently, on 19 September 1989, she met Trevor Maher and Mary Davis in the Land Council office at Wollongong. There her brother read the lease to her and asked whether she wished anything explained further, to which he said that she was ready to sign it. The lease was then signed as appears on its last page, and she described her having attended the office the following day to pay the rent. She also deposed that subsequently Ms Davis showed her a letter from the South Coast Regional Land Council approving the grant of the lease to her and of leases to three other residents. That letter is not in evidence. 9. Trevor Maher's evidence was that in 1989 he was approached by Mr Henry and Ms Davis to assist in relation to the granting of long term leases to occupants at the Reserve, to which he agreed. He was given material issued by the New South Wales Aboriginal Land Council, which included a form of residential lease for use by land councils. According to him, he was told by Ms Davis that members at a Land Council meeting had agreed to grant leases at a nominal rent for 99 years, or for such shorter periods as the occupants might prefer. She added that the granting of such leases had been approved by the Regional Land Council. Mr Henry told him that for the 99 year leases the rental was to be $1 a year, adding that the tenants would have the responsibility for upkeep, and for water rates and council rates unless they could obtain exemptions from them, and that Ms Davis had been authorised to sign the leases on behalf of the Land Council. 10. Mr Maher said he subsequently prepared leases for a number of occupants, including his sister, Ms Stewart. He gave them to Ms Davis, who said that she would take them to a meeting to have them approved. Subsequently Ms Davis told him that the leases had all been approved unanimously, and he was requested to sit down with the tenants, explain the leases to them, and give them the option of signing them. 11. He described the process of the execution of Ms Stewart's lease on 19 September 1989, consistently with her account. He deposed that he told Ms Davis that the lease would need to be approved by the Regional Land Council, and she replied that it had already been approved by that Council in principle. She later told him that a letter had been received from the Regional Land Council approving leases, included Ms Stewart's. 12. Neville Stewart's evidence was that he could recall leases being discussed at some of the Land Council meetings in 1989. In particular, he could recall that Mr Henry said the tenants could have either a 99 year lease or a 5 year lease. He referred to the role of Trevor Maher in advising them about the leases. He also gave evidence about the composition of the Regional Land Council at the time, a matter to which I shall return. 13. As I have said, the principal witness in the Land Council's case was Mr Roy Kennedy. He was a member of the Land Council, although not an officer bearer, throughout the relevant period. Put shortly, his evidence was that, although 99 year leases were discussed at meetings, the issue was not resolved. In particular, at no stage was there a resolution in accordance with s 42(2)(a) of the Act granting such a lease to Ms Stewart. Indeed, it was his evidence that he had no knowledge of the lease of 19 September 1989 until he discovered a copy of it in a box of records at the Land Council's office in early 1990. 14. He also deposed that he was the secretary of the relevant Regional Land Council at the time, that he attended all of its meetings in 1989, and that no such lease was put before the Regional Council for consideration, under s 40(2)(b), during that period. However, in cross-examination he resiled from his assertion that he had attended all Regional Council meetings in 1989, acknowledging that it was between 1986 and 1988 that he had done so. In fact he had attended no meetings in 1989, and at some stage had resigned from the Regional Council. Also at some stage in 1989 Neville Stewart was elected as the representative on the Regional Council, and he attended meetings of that Council with Mr Henry. This was also the evidence of Neville Stewart. That said, Mr Kennedy gave evidence that normally a Local Land Council would receive a report from a Regional Council about such a matter, and he had no knowledge of a letter from the Regional Land Council to Ms Davis approving the lease to Ms Stewart. 15. Mr Kennedy said that he was present at Land Council meetings during 1989 on 28 February, 29 August and 29 September. He said that he attended two meetings during October, the second of them on 31 October, and a further meeting on 14 November. There was also an annual general meeting on 8 December, at which Mr Kennedy was elected secretary. 16. There are in evidence minutes of all these meetings except the earlier meeting of October 1989. As will be seen, from other documentation it appears that that meeting took place on 11 October. The procedure of meetings was that the minutes would be taken in handwriting by the secretary or some other person nominated for that purpose, would be later typed up, and would be presented at the next meeting for discussion and adoption. 17. From the minutes of the meetings of 28 February and 29 August it appears that there was no discussion of the terms of leases generally, let alone Ms Stewart specifically. The meeting on 29 August was an extraordinary meeting to deal with the Land Council's budget. There was discussion about problems with occupancy at the reserve, which need not be examined for present purposes. According to Mr Kennedy, there had been contention about the issue and there had been what he described in oral evidence as "a volatile period in the Land Council". There had been difficulties holding meetings since the February meeting. It was because of these issues that the meeting was chaired, as is apparent from the minutes, by Mr Tiga Bales, the chairman of the NSW Aboriginal Land Council. As I have said, it was at that meeting that Ms Davis was elected as secretary. Mr Kennedy's recollection was that this was because of a casual vacancy, perhaps because someone who had occupied that position had resigned. (It could be that this was another of Ms Stewart's brothers, Geoffrey Maher, who had been the secretary in the earlier part of 1989, but had resigned and moved to Victoria.) 18. The first reference in the minutes which are in evidence to 99 year leases is in those of the meeting of 26 September. From these minutes it is apparent that there had previously been some discussion of 5 year leases. The minutes record discussion about the failure of some residents to pay rent, followed by the following contribution from Ms Lorraine Brown: "… said that all tenants would pay their rent. However, some disagree with the 5 year leases. Why can't there be a 99 year lease, concerned that people may be put out of their houses." To this the chairman, Mr Henry, is recorded as responding, "No problems there". 1. The minutes record that Mary Davis said that "this meeting was to deal with the leases." Mr Henry said that the "rental agreement was set out by the State Land Council and has to be uniform throughout the State," and it is recorded that Mary Davis "read out document on the residential lease." Plainly enough, this is a reference to the form of residential lease provided by the New South Wales Aboriginal Land Council, about which Trevor Maher gave evidence. 2. The minutes also record the following: "Mary also stated that Kay Maher, Neville Stewart and herself have inspected the houses with the Housing Commission and a decision made that the homes were in a fit and good condition for leasing." This presumably is a reference to the newly constructed houses, of which Ms Stewart's cottage was one. In oral evidence Ms Stewart said that she was "absolutely sure" that she did inspect the houses with her husband and Ms Davis before she signed her lease. She could not remember how long before, but said that it would not have been more than "a couple of weeks." However, Neville Stewart was asked in cross-examination how long this inspection took before the meeting of 26 September, and he said that it "could have been a week" but that he did not think that it would have been "more than a week." 1. This meeting, of course, was several days after 19 September, the day on which the lease to Ms Stewart was executed. From the minutes of this meeting also it is apparent that there was no resolution to grant a lease to anyone, including Ms Stewart. 2. The same is true of the minutes of 31 October and 14 November. However, the 14 November minutes record a discussion by Mr Peter Brown about whether water rates were included "in the Lease Agreement", after which appears the following: "He also asked if anyone else had signed this type of Lease (re: 99 years) Kay Maher stated that she had signed such a Lease." Mr Kennedy deposed that he did not hear any reference at that meeting to a 99 year lease having been granted to Ms Stewart. If such a matter had been raised, he said, he would have asked questions about it because no lease had been granted over any of the cottages on the Reserve at that stage, and there had been no decision at any previous Land Council meeting to grant any 99 year leases. 1. The minutes of this meeting record that Mary Davis had informed the tenants of the rent that would be sought for the houses depending upon their size, ranging from $120 per fortnight for a 5 bedroom home to $60 per fortnight for 1 bedroom homes. (Ms Stewart's cottage is a 5 bedroom home.) It is also recorded that Mary Davis stated "that the water rates related to Coomaditchie would not be paid by the Land Council except for those paying rent." This appears to be an assertion that the Land Council would bear the cost of water rates for any rent paying tenants, regardless of the period of the tenancy. 2. The minutes of the annual general meeting of 8 December disclose no discussion of leases. 3. Mr Kennedy deposed that in early in 1990 he became concerned about the state of the Land Council's records and what he saw as its failure to account properly for expenditure during 1989. It was during his examination of a box of records located in the garage behind the Land Council's office that he found the copy of Ms Stewart's 99 year lease. On 26 March 1990 he forwarded a complaint to the New South Wales Aboriginal Land Council about a number of matters causing him concern. One of those matters was that "the granting of a 99 year lease to Ms Kay Maher was never discussed or endorsed at a local meeting let alone at a regional meeting … ." 4. Eventually, in 1993, the Minister for Aboriginal Affairs appointed Mr David Cawthorn, a chartered accountant, to carry out an investigation of the Land Council. Mr Cawthorn's report is in evidence. It is unnecessary to set out the course of his investigation or his conclusions and recommendations. What is significant for present purposes is his examination of a volume of Land Council records, from which some of the material relevant to the present proceedings has been extracted. 5. The evidence establishes that notification of Land Council meetings was published in the Illawarra Mercury newspaper (and also, on occasions, in other local publications). Ms Yvonne Alphenaar is a librarian, engaged by the Land Council to examine microfilm records of the Illawarra Mercury in 1989 for the purpose of these proceedings. 6. That examination disclosed that the meeting of 28 February was advertised, but no meetings were advertised between March and July. In August an extraordinary general meeting was advertised for 17 August "to discuss 1989 to 1990 budget and to elect a secretary only." I am satisfied that this was the meeting that in fact took place on 29 August, as it is clear that the business of the meeting on that occasion was the budget and the election of Ms Davis as secretary. There could be any number of reasons why an advertised meeting does not in fact take place on the published date. 7. The next advertised meeting was that of 26 September. It was described as an extraordinary general meeting, the agenda being "leasing of houses at Coomaditchie." 8. Then, early in October, an extraordinary meeting was advertised for 18 October "to discuss leases for Coomaditchie only." There is no record of a meeting taking place on that date. As I have said, Mr Kennedy's recollection was of two meetings in October, the second of them being that of 31 October. He said that both meetings were directed primarily to the problem of illicit drugs on the reserve. In the light of the minutes of the meeting of 31 October, that could not be said of it. However, the Cawthorn report contains a summary of minutes of meetings which Mr Cawthorn found. This includes reference to a meeting of 11 October, relating to "Coomaditchie – again problems with illegal tenants, non-rent paying tenants, drug problems, wilful damage and leases." Those minutes, it seems, are no longer available. 9. There was notification in the Illawarra Mercury of the meetings of 31 October and 14 November. The next meeting, advertised late in November, was an extraordinary general meeting called for 5 December, the agenda being "Tenant committee report." There is no record of that meeting having taken place. Finally, the annual general meeting of 8 December was advertised early in that month. 10. The minutes of the meeting of 31 October disclose that the minutes of the "previous meeting" were read. The date of that previous meeting is not specified, but it has to have been the meeting of 26 September. This is because there is recorded in the minutes of 31 October, under the heading "Business arising from the minutes", discussion between Mr Kennedy and Ms Lorraine Wicks about something Ms Wicks is recorded as having said at the meeting of 26 September. This suggests that the advertised meeting on 18 October did not occur, but it leaves unexplained why it was not the minutes of the meeting of 11 October which were read on that occasion. 11. For a similar reason it is apparent that the meeting of 14 November was the next after that of 31 October. Again, the minutes of the meeting of 14 November record that the minutes of the previous meeting were read, without specifying the date of that previous meeting. However, the reading of those minutes led Ms Davis to make an enquiry about the engagement of the O'Brien Glass Company, a matter which had been dealt with at the meeting of 31 October. 12. Obviously, the testimony of witnesses relying only on memory about events so long ago would need to be scrutinised with considerable care. Equally, I allowed over objection evidence of statements made by Ms Davis and Mr Henry, now deceased, under s 63 of the Evidence Act 1995; but, being hearsay, the weight to be given to that evidence must be limited. For this reason such contemporaneous records as are available are of great importance. So much was acknowledged and, indeed, relied upon by counsel for both parties: Mr Michael Wright for the Land Counsel and Mr Simon Chapple for Ms Stewart. 13. Mr Wright submitted that, with the exception of the meeting of 11 October referred to in the Cawthorn report, there are in evidence minutes of all the Land Council meetings of 1989. From those minutes it is clear that at no stage was a resolution passed granting Ms Stewart a 99 year lease. Indeed, he added, there was no meeting specifically called for that purpose, a requirement of s 45(2)(a) of the Act. Accordingly, the records are inconsistent with Ms Stewart's evidence that there was a resolution early in 1989 that 99 year leases be offered upon the terms she suggested and, in particular, that there was a resolution granting such a lease to her, so that her evidence about this should be rejected. Mr Wright emphasised that he did not suggest that the execution of the lease of 19 September was fraudulent on the part of Ms Stewart or, indeed, Ms Davis or Trevor Maher. It may have been done in ignorance at that time of the statutory requirements. 14. Mr Chapple questioned the reliability of the Land Council records. He referred to Mr Kennedy's evidence of his concern in early 1990 about the state of the records. In cross-examination he said that he was not able to locate the minutes of every single meeting and, generally, "a lot" of documents had disappeared. Mr Cawthorn reported that he found no official minute book, that the minutes were often difficult to locate, and that some were found in a ring binder folder "while others were scattered amongst general documentation." 15. Indeed, Mr Chapple noted in Mr Cawthorn's report a reference to a letter he found in which the Regional Land Council asked Mr Kennedy himself to "return all books and records" of the Land Council. In fairness, when this was put to Mr Kennedy in cross-examination, he denied having received such a letter or having ever removed records. 16. Mr Chapple argued that there could well have been a meeting at which Ms Stewart's lease was approved, but no record of it survives. He referred to evidence of meetings during 1989 which are not accounted for by the documentary material. He referred to an undated letter from Mr Kennedy to Stephen Wright, an officer of the New South Wales Aboriginal Land Council, written in or about May 1997. In that letter Mr Kennedy referred to there having been two meetings held in September 1989, one on the 11th and the other on the 26th, that of the11th not having been advertised. He also noted a list of documents referred to in the Cawthorn report which were said to have been found in a room at the Land Council office, which included minutes of a meeting held on 26 June 1989. Mr Kennedy was not asked about that June meeting, but in cross-examination he said that he did not recall what occurred on 11 September. Mr Chapple placed some emphasis on that meeting because it was only eight days before the lease was executed. That, he argued, may have been the occasion upon which it was approved. 17. Mr Chapple also noted that the meeting of 11 of October had not been advertised, while there is no record of what occurred at two other meetings which were advertised, those of 18 October and 5 December. As I observed above at [37], the evidence suggests that the meeting of 18 October did not take place, but it does not admit of a firm conclusion about the matter. Perhaps the advertised meeting was brought forward to 11 October, when a meeting did take place, but that could be no more than speculation. Equally, it cannot be concluded that the advertised meeting of 5 December did not occur. All that can be said is that there is no documentary evidence of it. 18. As to the approval of the Regional Land Council, Mr Chapple relied upon Ms Stewart's evidence that Ms Davis had received a letter to that effect, and noted that Mr Kennedy's evidence, as it was clarified in cross-examination, does not establish that there was no such approval. Mr Wright, on the other hand, noted that there is no documentary evidence of approval by the Regional Land Council, including any reference in the Land Council records to such an approval having been sought or granted. Moreover, the evidence of Neville Stewart, who was a regional representative at the relevant time, was silent on the matter. Mr Wright submitted that I would reject Ms Stewart's evidence about this aspect also. However, his primary submission was that the Land Council had never approved the grant of a lease to her in the first place, so that the issue of approval by the Regional Land Council could not have arisen. 19. In support of the proposition that the statutory requirements had been met, Mr Chapple also relied upon the presumption of regularity. This was expressed by McHugh JA in Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 (a case very different factually from the present) at 164: "Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled." His Honour referred to the Latin maxim expressing that presumption, saying that the "natural home of the maxim is public law." 1. Mr Chapple argued that the lease was valid on its face, that it bore the common seal of the Land Council and that it was signed by Mary Davis, the secretary of the Land Council at the time. He referred to s 64 of the ALRA, which relevantly provides: "64 In any legal proceedings, no proof shall be required (until evidence is given to the contrary) of -- … (b) any resolution of an Aboriginal Land Council; … (e) the presence or nature of a quorum at any meeting of an Aboriginal Land Council." 1. Mr Chapple also referred to s 40(5), set out at [4] above, providing that a certificate by the secretary of a Land Council that the requirements of the section have been met in respect of a lease shall be conclusive evidence of those matters in favour of a bona fide purchaser for value without notice. He did not suggest that the signature of Ms Davis on the lease amounted to such a certificate, but argued that the fact that the lease was executed by the person authorised to provide such a certificate strengthens the presumption of regularity in the present case. 2. Accordingly, Mr Chapple submitted, the Land Council bore the burden of proving that the statutory requirements were not met and cogent evidence would be required to rebut the presumption. He referred to the examination of the presumption by Basten JA in GPT RE Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256, 72 NSWLR 647, at [78]-[83] (666-7). His Honour examined the burden of proof in this context, and referred to the presumption of the validity of certain instruments expressed in s 45 of the Interpretation Act 1987, a provision having its counterpart in s 64 of the ALRA. At [83] his Honour observed that "a party challenging the validity of an exercise of statutory authority must demonstrate, by appropriate evidence, some basis for a finding of invalidity." 3. In response, Mr Wright pointed out that on its face the lease was not validly executed. At the relevant time the Land Council was subject to model rules set out in schedule 2 to the Aboriginal Land Rights Regulation 1983. Rule 30 deals with the common seal, and rule 30(2) provides: "30(2) A person shall not use the Common Seal without the authority of the Council. Every instrument and document on which the seal is placed shall be signed by an office-bearer (other than the Secretary) and shall be countersigned by the Secretary or by some person appointed by the Council for the purpose." Ms Davis was, of course, the secretary of the Council at the time. Ms Tungai was a member of the Council, but was not an office-bearer and had not been appointed by the Council for the purpose of the sub-rule. Accordingly, the common seal had not been validly affixed to the lease. 1. Mr Wright emphasised the beneficial and remedial purposes of the ALRA, and the need for the Land Council to act strictly in accordance with statutory requirements such as s 40(2). This proposition is uncontroversial, as is apparent from the provisions of the Act generally, and is supported by a substantial body of authority. It is sufficient to refer to Hillig v Darkinjung Pty Ltd [2008] NSWCA 75, in which McColl JA (with whom Beazley and Giles JJA agreed) examined the issue at some length, citing the related decisions of Barrett J in Darkinjung Pty Ltd v Darkinjung Local Aboriginal Land Council [2006] NSWSC 1008, 203 FLR 394, and White J in Hillig v Darkinjung Pty Ltd [2007] NSWSC 683, as well as the decision of Campbell J in Sanpine Pty Ltd v Koompahtoo Local Aboriginal Land Council [2005] NSWSC 365. 2. In relation to the present case, Mr Wright relied upon the clear terms of s 40(2) and the emphatic provision in subs (11) that any dealing with land in contravention of the section is void. Mr Chapple acknowledged the approach to the Act emerging from the authorities, but argued that it was not inconsistent with the application of the presumption of regularity to the exercise of the powers conferred by the Act. The authorities do not deal with that question. However, against the background of the beneficial and protective purposes of the Act, the present case demonstrates the importance of the requirements of s 40 being seen to have been met. 3. The lease to Ms Stewart is not easily viewed as the disinterested exercise of statutory power conferred upon an administrative body having responsibility under the relevant statute. As Mr Wright put it, Ms Stewart was not a person at arm's length from the Land Council. She was a longstanding member of it, and during 1989 had been employed by it. Both her brothers were members of it, and her older brother, Geoffrey, had been an office bearer. Her younger brother, Trevor, attended the office on the day the lease was signed and explained it to her, on behalf of the Land Council, apparently perceiving no conflict of interest in doing so. 4. The effect of this, as Mr Wright pointed out, was to confer upon Ms Stewart effective ownership of a cottage, which had been built as social housing, for a peppercorn rental: a benefit which had not been extended to anyone else in the community. She has already enjoyed the fruits of the arrangement for over 25 years. Again, it is not suggested that she or anyone else involved in the execution of the lease acted fraudulently or, indeed, with conscious impropriety. Nevertheless, the situation demands examination of whether the statutory requirements were met and there is no place for resort to the presumption of regularity. The facilitative provisions in s 40(5) and s 64 of the ALRA are not relevant here. 5. Mr Wright submitted that Ms Stewart bore the burden of proving compliance with s 40(2) of the Act. He referred to the passage from the judgment of Walsh JA in Currie v Dempsey (1967) 69 SR (NSW) 116 at 25-6, where his Honour distinguished between the burden of proof "as a matter of law and pleading", that is, of establishing a case, on the one hand, and the burden of proof "in the sense of introducing evidence", on the other. His Honour observed that the burden of proof in the first sense lies on the plaintiff if the fact alleged is an essential element of the cause of action. However, the burden is on the defendant "if the allegation is not a denial of an essential ingredient in the cause of action, but is one which, if established, will constitute a good defence … ." 6. I accept that that analysis applies to the present case and, absent the presumption of regularity, Ms Stewart bears the burden of establishing that the statutory requirements were met. I might add, however, that even if the Land Council bore the onus of proving the contrary, I would find that onus discharged. 7. True it is that not all the records of meetings in 1989 have been located. Nevertheless, the majority of the records are in evidence, and it is noteworthy that none of them records a meeting specifically called for the purpose of approving a lease to Ms Stewart or a resolution granting such approval. Nor is there any reference to any such meeting or resolution. Moreover, it is apparent from the minutes of the meeting of 26 September, held after the lease was executed, that the issue of the terms of leases was still under discussion. Consistently with this, it is also recorded that Ms Stewart and others had inspected the houses to ensure their fitness for leasing. If the evidence of Neville Stewart be accepted, that was no more than a week before the meeting. On any view, it must have been recent at the time. Plainly enough, the issue of leases had not been resolved at this stage, and it is highly improbable that the Land Council would already have passed a resolution approving a 99 year lease to Ms Stewart. 8. Mr Chapple argued that the necessary approvals might have been obtained after the lease was executed, and that this would have been a permissible course under the Act. He referred to the chapeau to s 40(2), that a Local Land Council "may lease land vested in it …" if the requirements of the subsection were met. At that point, he submitted, the word "lease" operating as a verb, means the passing of a proprietary interest in the land. Thus, a lease document might be executed before compliance with the conditions imposed by subs (2), but it would not be effective to pass a proprietary interest until they had been complied with. The reference to "lease" in subs (11) should be understood in the same way. Given that the Land Council records are incomplete, he argued, it cannot be said that the necessary approvals may not have been given at a later meeting. 9. Ingenious as this argument is, I consider it to be a strained construction of the provision. It might be possible to execute a lease which is expressed to be subject to compliance with the section before it becomes effective: cf (in a different context) Redglove Projects Pty Ltd v Ngunnawal Local Aboriginal Land Council [2005] NSWSC 892 (Young CJ in Eq). However, there is no such reservation in the lease to Ms Stewart, and it is apparent that it was intended to take effect according to its terms on 19 September. Indeed, she paid the rent for the whole term of the lease the next day. In any event, the records in evidence of subsequent meetings disclose no resolution approving the lease, consistent with Mr Kennedy's complaint to the New South Wales Aboriginal Land Council in March 1990 referred to at [30] above. 10. What the circumstances were leading to the execution of the lease on 19 September I cannot say. However, I find that the requirements of s 40(2) of the Act were not met and that the lease is invalid. The Land Council is entitled to possession of the property, and Ms Stewart's cross claim must be dismissed. Two subsidiary matters were raised on the pleadings but, in the light of my decision on the central issue, it is unnecessary to address them. Nor has it been necessary to deal with all of the matters raised in the comprehensive submissions of counsel, both of whom conducted their cases competently and responsibly, and for whose assistance I am grateful. 11. Accordingly, I make the order sought in the statement of claim, that is, that the plaintiff have possession of that part of Lot 132 in Deposited Plan 720896 known as No 12 Tombrown Road, Kemblawarra, including the dwelling house built thereon. The defendant's cross claim is dismissed. If necessary, I shall hear the parties on costs. 12. At the conclusion of submissions Mr Wright made it clear that the Land Council does not want to put Ms Stewart out on the street. It wishes to regularise her occupation of the property by her entering into a residential tenancy agreement consistent with those of other tenants. I can but hope that such a resolution can be achieved. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 February 2016